De La Espriella-Velasco v The Queen

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DE LA ESPRIELLA­VELASCO -v- THE QUEEN [2006] WASCA 31

CORAM:   ROBERTS-SMITH JA

PULLIN JA
MILLER AJA

HEARD:   15-17 AUGUST, 13-14 DECEMBER 2005

DELIVERED          :   10 MARCH 2006

FILE NO/S:   CCA 130 of 2003

CCA 146 of 2003

BETWEEN:   FERNANDO DE LA ESPRIELLA­VELASCO

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MURRAY J

File No  :INS 131 of 2002

Catchwords:

Criminal law and procedure - Defence of duress - Whether trial Judge should have put to jury - Disallowance of answer to question in re-examination relating to duress - Whether appropriate to disallow - Admissibility of conversation between accused and his wife at prison whilst wife assisting with translation of prosecution brief - Wife made available for this purpose at instruction of the Court - Whether conversation privileged

Criminal procedure - Whether admission of evidence unfair - Whether prosecution entitled to use evidence of conversation against accused in cross-examination - Failure to disclose before cross-examination - Whether splitting of case by prosecution - Jury permitted by Judge to take English translations of recorded conversations home overnight - Whether this occasioned miscarriage of justice

Criminal law and procedure - Interpreter - Whether standard of interpretation sufficient for fair trial of accused - Whether interpreter competent - Whether errors in interpretation denied accused a fair trial

Absence of the witness - Person charged, but discharged by Court of Petty Sessions at request of prosecution - Allowed to leave Australia - Whether prosecuting authorities had obligation to keep witness in the country

Criminal law and procedure - Fresh evidence - Statements of witnesses about violent events in Colombia after trial - Whether evidence admissible as relevant to question of duress

Criminal law - Sentence - Life imprisonment with non-parole period of 26 years - Whether non-parole period excessive - Parity with co-offenders - Role played by appellant

Legislation:

Crimes Act 1914 (Cth), s 16G

Criminal Appeals Act 2004 (WA), s 30(4), s 39, s 40
Criminal Code Act 1995 (Cth), s 10.2
Criminal Code, s 687(1), s 697
Criminal Procedure Act 2004 (WA), s 110
Evidence Act 1906 (WA), s 133, s 134
Evidence Act 1995 (Cth), s 30

Migration Act 1958 (Cth), s 427(7)

Result:

Appeal against conviction dismissed
Application for leave to appeal against sentence granted
Appeal against sentence dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr T F Percy QC & Mr J A Davies

Respondent:     Mr J V Agius QC & Mr D W L Renton

Solicitors:

Appellant:     D G Price & Co

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75

Anderson v The Queen (1996) 18 WAR 244

Beamish v The Queen [2005] WASCA 62

Bekink v The Queen (1999) 107 A Crim R 415

Bunning v Cross (1978) 141 CLR 54

Button v The Queen (2002) 25 WAR 382

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Details
Case
[2006] WASCA 31
Decision Date

CaseChat Overview and Summary

The case of De La Espriella-Velasco v The Queen involved the appellant, a Colombian national, who was convicted of drug trafficking offences and sentenced to life imprisonment with a non-parole period of 26 years. The appellant appealed against his conviction and sentence, raising multiple grounds for appeal. The central issues included the trial judge's failure to put the defence of duress to the jury, the admissibility of certain evidence, the competency of the interpreter, and the fairness of the trial. The court was required to determine whether the trial judge erred in not addressing the defence of duress, whether the exclusion of certain evidence was appropriate, and if the trial was conducted in a manner that ensured a fair outcome.

The court found that the trial judge did not err in declining to put the defence of duress to the jury, as there was no credible evidence to support it. The appellant's claim of duress was based on hearsay and was not substantiated by any reliable witnesses or documentary evidence. The court also considered the admissibility of the conversation between the appellant and his wife, which took place while she was assisting with the translation of the prosecution brief. The court held that the conversation was not privileged and was appropriately admitted as evidence. The court further examined the competency of the interpreter used during the trial and concluded that, despite some errors in interpretation, the appellant did not suffer a miscarriage of justice due to the interpreter's performance.

In its reasoning, the court highlighted the importance of ensuring a fair trial, particularly when the accused's language proficiency is limited. The court emphasised that while there were some deficiencies in the interpretation, they did not reach the threshold of depriving the appellant of a fair trial. The court also found that the prosecution's failure to disclose certain evidence before cross-examination did not result in a miscarriage of justice. Regarding the non-parole period, the court considered the appellant's role in the crime and the need for general deterrence and denunciation before upholding the sentence.

In conclusion, the court dismissed the appeal against conviction and sentence, affirming the trial judge's decision on all grounds of appeal. The court upheld the conviction and sentence, emphasising the importance of a fair trial and the need for adequate interpretation services. The court's decision underscored the significance of ensuring that all parties have a fair opportunity to present their case, particularly in light of the appellant's language barriers.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The way in which an appellant may demonstrate incompetent or deficient interpretation, and the extent of departure from what is a necessary standard of interpretation, were aspects which fell for consideration by Kenny J in the context of an application for judicial review of a decision of the Refugee Review Tribunal in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. The applicant gave evidence before the Tribunal in Sinhalese, by means of an interpreter. His migration agent subsequently made written submission noting there was no NAATI accreditation for Sinhalese interpreters and that the interpreter had become confused on a number of occasions at the hearing and that needed to be taken into account in assessing the evidence and the credibility of the applicant. In its determination, the Tribunal noted that neither the adviser nor the applicant made any comments about the interpreter during the hearing and that the claim had been made only afterwards. The Tribunal did not accept that the interpreter did not competently interpret the material presented by the applicant. One of the grounds of appeal in the Federal Court was that the Tribunal erred in law in failing to provide "adequate or proper interpreter services". Counsel for the applicant relied upon the transcript of the Tribunal hearing to support a submission that the interpretation was incompetent. The argument was founded primarily on s 427(7) of the Migration Act 1958 (Cth), which specifically provides that where a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with them proceed through an interpreter. Kenny J was prepared to accept that the absence of an interpreter for an applicant who required one, would mean the Tribunal had no jurisdiction. Her Honour began her consideration by summarising the effect of the authorities (at [18] ‑ [19]):"18In criminal trials, there is a rule that an accused must be physically present in court. The rule, it is said, is intended to ensure that the accused is able to hear the case against him and to have an opportunity to answer it. The same rationale is said to inform the approach taken in the criminal courts with respect to the use of interpreters. In the case of an accused who is not sufficiently proficient in English to understand the proceedings or to make himself understood, the trial judge must, as part of his duty to ensure a fair trial, see to it that the accused receives the assistance of a competent interpreter: Dietrich v R (1992) 177 CLR 292 at 331 per Deane J; R v Saraya (1993) 70 A Crim R 515 at 516 per Badgery-Parker J (with whom Kirby ACJ and Loveday AJ agreed); R v Johnson (1987) 25 A Crim R 433 at 435 per Shepherdson J and 442-443 per Derrington J; R v Lee Kun [1916] 1 KB 337 at 341–343 per Lord Reading CJ; Kunnath v State [1993] 1 WLR 1315 at 1319–1321 (PC); R v Begum (1985) 93 Cr App R 96 at 100–101; R v Tran [1994] 2 SCR 951 at 963 and United States ex rel Negron v New York (2nd Cir 1970) 434 F 2d 386.19For similar reasons, there may be a need for the services of an interpreter in a civil proceeding: cf Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 423–424 per Kirby P, 425 per Samuels JA and 427 per Clarke JA and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 81 per Mahoney JA."